Unpublished Disposition, 931 F.2d 897 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 897 (9th Cir. 1987)

Michael Edward SMITH, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.Ronald Allen SMITH, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

Nos. 90-56152, 90-56153.

United States Court of Appeals, Ninth Circuit.

Submitted April 29, 1991.* Decided May 1, 1991.

Before CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.


In these consolidated appeals, Michael Edward Smith and Ronald Allen Smith appeal pro se the district court's denial of their 28 U.S.C. § 2255 motions to vacate their sentences. The Smiths were convicted on ten counts of mail fraud in violation of 18 U.S.C. § 1321 for running a gem investment scheme. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and affirm.

The Smiths contend that they should have been sentenced under the United States Sentencing Guidelines ("Guidelines") because their crimes straddled the November 1, 1987 effective date of the Guidelines.1  This contention lacks merit.

The Guidelines apply to offenses committed after October 31, 1987. United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). Because the Smiths were convicted for offenses committed in 1983 and 1984, they are not entitled to be sentenced under the Guidelines. Accordingly, the district court properly denied the section 2255 motion.

The Smiths also contend that the imposition of a sentence which exceeds the maximum allowed under the Guidelines violates their right to due process and equal protection. This contention lacks merit.

A pre-guidelines sentences is not unconstitutional because it is lengthier than what the sentence would have been under the Guidelines. See United States v. Hadley, 918 F.2d 848, 854 (9th Cir. 1990). The Smiths do not have a right to be sentenced under a law which does not cover crimes committed during 1983 and 1984 simply because they believe that law would provide them with a more lenient sentence.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The Smiths argue that the offenses they were charged with were "continuing offenses" and that the prosecution "sought to convey" to the jury by the use of the present tense that the Smiths' scheme was continuing "right up to the very last closing arguments of the trial" on November 6, 1987